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The Law on Forced Abortion in China: Few Options for Victims

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on Wed, 07/04/2012 - 23:24
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A screenshot shows one of a series of photos circulating online that show 23-year-old Feng Jianmei after she was forced to undergo an abortion seven months into her pregnancy.

Two recent incidents involving officials’ violence against women call attention to the violation of citizens’ rights by local governments and the weakness of remedies for citizens under Chinese law . Both cases also dramatize the harshness of the one-child policy and the abortions that are often ordered by local governments.

In a widely publicized case in Shaanxi province in early June, local authorities forced Feng Jianmei, who was seven months pregnant, to abort her fetus after she refused to pay a $6,300 fine for a second pregnancy. They took her to a hospital against her will and injected her with a chemical that induced the abortion.

Amidst a storm of publicity- – much of it online- – two officials have been fired and five others have received warnings or demerits. According to the China Daily, there was no legal basis for the demanded fine, and the local government has said that “her legal rights were violated.”

In Hunan Province, also in June, a woman five months pregnant was dragged from her home to undergo an abortion, according to rights groups. According to news reports, she eventually was made to put down a deposit that she gives up if she doesn’t go through with the procedure. Such cases are not unusual.

There is little likelihood that these women can obtain a clear legal decision that their rights have been violated. Although the Chinese Constitution enumerates citizens’ rights and also includes the principle of “ruling the country in accordance with the law,” no claim can be brought that relies on that document. In 2008 the Supreme People’s Court made clear that litigation may not be based on specific provisions of the Constitution.

The Law on Population and Family Planning makes punishable “any functionary of a State organ… infringing on a person’s personal rights” or “abusing his power.” It does not provide for any suit against the state for damages by a victimized person.

A number of laws do exist that could serve as a basis for suits by citizens for their injuries, but neither doctrine nor practice has been well developed to support such suits. They include the following :

1) The State Compensation Law provides that if “State organs or State Functionaries, in executing their functions and powers, infringe upon the legitimate rights and interests of citizens…thereby causing damage to them, the victims shall have the right to State Compensation in accordance with the Law.” This law seems to be weakly enforced due to the influence of local governments, which choose local court judges and fund court budgets, and which often seek to influence the outcomes of controversial cases.

2) The Administrative Litigation Law (ALL) authorizes suit by a citizen against a state agency for a variety of reasons. However, administrative lawsuits involving the one-child policy seem to be uncommon. The latest statistics indicate that of the 136,000 administrative law disputes brought to the courts in 2011, only 12% involved “planned birth” issues. (Gazette of the Supreme People’s Court, No.4, 2012, p. 33)

One provision of the ALL makes it possible to sue a state agency for violating “statutory process,” i.e., its own procedures. This comes closest to expressing the ideal of procedural justice like that of “due process of law” that is guaranteed to American citizens by the U.S. Constitution. It has limited force in China. Professor He Haibo of Tsinghua University Law School has traced the rise of emphasis on procedural justice in cases that establish “a foothold in judicial practice.” He also notes that the cases are few and they do not represent an authoritative judicial principle.

Despite the existence of laws that claimants may invoke, the central government has limited the force of those laws by instructing the courts to bring about settlement through mediation rather than issuing formal judicial decisions. According to a guideline issued to the courts by the Supreme People’s Court in 2006, mediation should focus on “cases that relate to people’s livelihoods and mass interests; those that possibly undermine social stability; those that are sensitive or receive extensive public attention; or those that involve petitions.”

Mediation has increasingly begun to be employed in citizens’ suits against state agencies even though the ALL specifically excluded its use. Some legal scholars have criticized this as encouraging judges to pressure plaintiffs to settle their claims. In an effort to promote the current policies, judges are assigned quotas on the number of cases they must decide by mediation rather than adjudication—and the number they mediate will be taken into account when their performance is reviewed by their superiors.

Mediation is also increasing in dealing with claims of medical malpractice in complex cases in an effort to avoid publicity. Benjamin Liebman observes in a forthcoming paper that court decisions are often aimed both at bringing about peaceable settlements especially when protests are involved, and reaching an equitable solution even when no error was found by a defendant such as a hospital. Some local health departments have established mediation institutions to avoid litigation and to maintain social stability.

It is likely that women in the countryside would not insist on a judicial decision, even though Ms. Feng, for example, might benefit from unprecedented publicity, including a shocking photo of her in a hospital bed with the bloody body of her dead fetus next to her. Given the likely close relationships among the local court, the local government and the Party organization responsible for overseeing both, Party and state officials embarrassed by the publicity will prefer to quiet some of the public anger by fostering settlement of any claims. The county government has already been at work to stave off a lawsuit: The China Daily report noted above states that the county government has already been ordered “to offer Feng’s family compensation.”

The impediments that prevent citizens from using the law to protest the violation of their rights will not go away unless the enforcement of existing laws is strengthened by stronger central government control over the arbitrariness of local governments

By Stanley Lubman